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Wednesday, September 27, 2006

Ind. Law - "Emergency" rulemaking at the Department of Natural Resources

My thoughts. A properly promulgated administrative rule in Indiana has the force and effect of law. The law governing state agency rulemaking, IC 4-22-2, provides for public notice and comment before a rule may be adopted, followed by review and approval by the attorney general and the governor, and generally a period of at least 30 days thereafter before the rule or rule change goes into operation.

There is an exception to this process. IC 4-22-2-37.1 allows for the temporary adoption of "emergency" rules in specific circumstances. None of the safeguards described above apply, the agency head simply files the new rule or rule change, and it is law, at least temporarily.

IC 4-22-2-37.1(a)(2) makes this emergency exception applicable to "An action taken by the director of the department of natural resources under IC 14-22-2-6(d) or IC 14-22-6-13."

Normally, an emergency rule expires 90 days after adoption and may only be extended once - see IC 4-22-2-37.1(g). I am familiar with IDEM's use of emergency rulemaking, it is used rarely and is generally limited to cases where a normal notice and comment rulemaking is underway, but a parallel emergency process is used to put the rule into operation during the interim. I do not recall it ever being used in the case of a controversial rule, generally what is involved is a rule change mandated by federal law.

I was surprised today when I looked at the emergency rulemaking process to see how the DNR chief could by his signature alone put a rule into place that would be effective for, not 90 days, but an entire year.

This authority is not located in IC 4-22-2-37.1 or anywhere else in the statute that covers rulemaking by state agencies. Rather, it is found in the department of natural resources law, at IC 14-10-2-5, which states:

Sec. 5. (a) The department may adopt emergency rules under IC 4-22-2-37.1 to carry out the duties of the department under the following: * * *

(b) A rule adopted under subsection (a) expires not later than one (1) year after the rule is accepted for filing by the publisher of the Indiana Register.

And again, "adoption" in this case requires nothing more than the signature of the DNR chief.

None of this explains, however, why it was felt necessary in the case of the new rule allowing handguns in state parks to treat this rule change as an "emergency", thus circumventing the entire public rulemaking process. Unless that circumvention itself was the purpose.

For background, see "DNR lifts ban on handguns in state parks", here.

Posted by Marcia Oddi on September 27, 2006 03:24 PM
Posted to Administrative Law | Environment | Indiana Government | Indiana Law